[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath:
“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
During the height of the Watergate scandal in 1974 Secretary of Defense James Schlesinger is said to have become so concerned about President Nixon’s emotional state that he instructed the military chain of command that any orders conveyed directly by the President to the military should be re-routed through him to determine if they should be followed. Schlesinger was particularly concerned about orders pertaining to nuclear command and control. The Trump Administration, which is to say President Trump, has renewed interest in the subject of nuclear command and control and more generally the question of lawful orders. In 2017, the then Commander of U.S. Strategic Command was asked about the scenarios in which he might advise, or even push back against, the President in a discussion on nuclear matters. General John E. Hyten, who now serves as the Vice Chairman of the Joint Chiefs of Staff, responded:
I think some people think we’re stupid. We’re not stupid people. We think about these things a lot. When you have this responsibility how do you not think about it? And so – but what people forget is this is a military mission and a military function. And since the day I joined the service, 36 years ago, every year I get trained in a law of armed conflict. And the law of armed conflict has certain principles and necessities, distinction, proportionality, unnecessary suffering. All those things are defined. And we get, you know, for 20 years it was the William Calley thing that we were trained on because if you execute an unlawful order you will go to jail. You could go to jail for the rest of your life. It applies to nuclear weapons. It applies to small arms. It applies to small unit tactic. It applies to everything and we apply it as we go through it. It’s not that difficult. And the way the process works – if you want to get the details later, I’ll go into the details later. The way the process works is this simple: I provide advice to the President. He’ll tell me what to do and if it’s illegal, guess what’s going to happen?
Moderator: You say no.
General Hyten: I’m going to say, Mr. President, it’s illegal. And guess what he’s going to do? He’s going to say what would be legal? And we’ll come up with options of a mix of capabilities to respond to whatever the situation is. And that’s the way it works. It’s not that complicated.
More recently, the clearing of protesters in Lafayette Square, the advent of protest movements across the country following the death of George Floyd, and statements by President Trump about the electoral process have prompted questions about when and in what contexts the President may lawfully order U.S. Armed Forces, regular, reserve, or National Guard, into domestic and civil contexts.
President Trump’s tweets, some about military matters, also prompt consideration of what exactly is an order, does it have to take a particular form, and when is a statement by the President a military order? These are urgent questions the answers to which ought to be known not only to the Commander in Chief, but also to the military commanders and units under his ultimate constitutional command. The American public, which reveres the Armed Forces, in part because of their apolitical adherence to law, should know as well so that it can make informed judgments about whether to send its sons and daughters into the Armed Forces and determine whether the military’s leadership is supporting and defending the Constitution and America’s constitutional values and traditions.
However, although the question of lawful orders may be cast and debated with a particular president in mind, or through a partisan lens, questions about lawful orders are recurring and arise in daily national security contexts across administrations as well as everyday military life. The National Security Council (NSC) staff, for example, is prone to convey “guidance” to the Department of Defense and the military. If such “guidance” in fact comes from the President and directs the performance of a military duty, then it is a military order; however, if it comes from the staff, including the National Security Advisor, it is not an order but is merely suggestive. As a result, for some years, it has been normative for specific memos called “cabinet memos” to be written to memorialize specific directions (orders) from the President to the Department of Defense and military chain of command. Similar questions can arise within the Defense Department as matters are debated and decisions made in the Office of the Secretary of Defense and within the Joint Staff.
Neither is the question of lawful orders a new one. It is enduring for members of the armed forces. Military officers and civilian officials swear an oath to support and defend the Constitution. They do not swear an oath to the Head of State, or to a service or branch, as is the case in some other countries’ armed forces. Thus, if following orders is an essential professional military duty, adherence to the law and thus lawful military orders is an essential American military duty as it is an essential duty in any country and military committed to the rule of law. Members of the U.S. Armed Forces, as General Hyten suggested, have a duty not only to follow orders, but to refuse to comply with illegal orders. That is the military’s constitutional “compact.” In exchange for its obedience to orders, the military chain of command (including its civilian components) commits to abide by meaningful processes to ensure that orders are lawful.
This paper addresses four subjects: (1) obedience to orders as a military necessity; (2) the military duty not to follow clearly unlawful orders; (3) the current system in place to meet the requirements of obedience to lawful orders; and (4) some of the questions civilian and military leaders should purposefully address to minimize ambiguity and disputes over whether orders are lawful. However, to be clear, this paper is a primer. It is not intended to address a specific order – past, present, or future – or for that matter a particular scenario. It is an exposition on the nature of military orders, so that in context, lawyers, commanders, and observers have an analytic framework with which to draw on and apply.
Obedience to Orders – A Military Necessity
“Obedience to orders is the vital principle of military life – the fundamental rule, in peace and in war, for all inferiors through all the grades from the general of the army to the newest recruit.” So wrote William Winthrop, the most influential scholar in the history of military law and author of the 1920 treatise, Military Law and Precedents. This is not just the view of lawyers like Winthrop, it is the view of commanders like George Washington and James Mattis, who know best the wartime connection between obedience, discipline, law, and command. “Discipline is the soul of an Army,” Washington wrote upon taking command of the Continental Army in 1775, “it makes small numbers formidable; procures success to the weak and esteem to all.” Secretary Mattis agreed, quoting Washington in his August 2018 memorandum on discipline.
Discipline is a product of leadership, training, doctrine, and morale, all of which together culminate in obedience to orders, or in military parlance “good order and discipline.” You cannot have a functioning military hierarchy without obedience. Obedience to orders is, of course, as old as military service. At Thermopylae, the three hundred Spartans died “obedient to her laws.” Article IV of Richard II’s Ordinances of War provided that everyone should be obedient to his captain under penalty of losing his horse, his armor, and being placed under arrest. The lineage of the Uniform Code of Military Justice’s (UCMJ’s) articles addressed to following orders traces to the Articles of War of 1775 and from there to earlier iterations of British Articles of War.
Lawful Orders – A Constitutional Necessity
Obedience to orders in U.S. military practice is rooted in democratic and constitutional principle. Military obedience to the President’s and Secretary of Defense’s orders underpins civilian constitutional control of the military. And as noted in the oath of service – obedience – is ultimately to the Constitution, which means all of the Constitution’s provisions and not just those related to the Commander in Chief. This point is embedded in the discussion in the Manual for Courts Martial accompanying Article 90 (Willfully Disobeying Superior Commissioned Officer). An order, the discussion states, “must relate to [a] military duty, which includes all activities reasonably necessary to accomplish a military mission…. The order may not, without such a valid military purpose, interfere with private rights or personal affairs.”
The post-World War II system of military command is predicated on the principle that military personnel also have a duty derived from the oath of service to refuse to comply with clearly unlawful orders, whether those orders come from a company commander or the commander in chief. The lesson of Nuremberg, the lesson of Yamashita, and the lesson of My Lai is that military personnel must have the integrity and moral courage to say no when an order is clearly unlawful. That is a military duty. The Manual discussion states: “An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The concept is embedded in military culture. The Department of Defense has created a system and process to provide for legal compliance including legal review of weapons and operations for compliance with U.S. and international law, to train military members on the law, and by providing legal advisers to commanders, so that they will know when an order is unlawful, “such as one that directs the commission of a crime.” This is reflected in the DOD Law of War Program, General Hyten’s remarks, and in the fact there are roughly 4,600 judge advocates who serve in uniform, who like commanders swear an oath to support and defend the Constitution.
The concept that military members have a duty not to follow clearly unlawful orders is enshrined in the Nuremberg Principles and the Uniform Code of Military Justice. The UCMJ was enacted in 1950 and took effect 1951 to incorporate the lessons learned during World War II. Many of these lessons derived from the experience of U.S. soldiers with a wartime military justice system that seemed to reflect more of the values of the Articles of War of 1775 than the contemporary values of justice and freedom for which many Americans believed they were fighting.
The Code reflects three of the great principles to emerge from the Nuremberg trials: (1) Commanders are legally responsible for everything they do, their units are ordered to do, or which they knew of or had reason to know of and did nothing to stop; (2) “the fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility” to which the International Law Commission and DOD LOW Manual later offered the additional nuance “provided a moral choice was in fact possible to him:” and (3) national security does not excuse or permit the violation of law. Each principle is found in Justice Jackson’s opening statement as Chief Prosecutor at Nuremburg.
The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.
From these principles we derive the basic rule found in both the Manual for Courts-Martial (MCM) and in military case law regarding orders. “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” MCM, Rule 916(d); United States v. Kisala. This is a more nuanced application of the Nuremberg principle. The corollary is also true in a prosecution for committing an offense and raising the affirmative defense of following orders. “Justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.” United States v. Keenan.
When leadership and discipline fail, in American practice, there is the military justice system. This starts with the sorts of non-judicial punishment (NJP) contemplated by Article 15 of the Code. Not every violation of a lawful order is a criminal offense or warrants criminal prosecution. The failure to get a haircut, when ordered to do so by competent authority, for example, might best be dealt with by the First Sergeant and, if that fails, NJP. However, where fundamental discipline is at issue, the chain of command is likely to proceed with charges under one of three punitive articles all rooted in obedience to orders.
Article 90 – Willfully disobeying superior commissioned officer
Article 91 – Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer
Article 92 – Failure to obey order or regulation
One can also imagine an orders violation resulting in charges under Articles 133 (Conduct unbecoming an officer) and 134 (General article addressed to undermining good order and discipline and service discredit). Finally, although some serious conduct would no doubt violate orders, it would most likely also be charged or exclusively charged based on the underlying conduct, e.g., murder, rape, or aiding the enemy.
There are, of course, fewer public or publicized examples of military personnel who declined to follow unlawful orders, or more likely, guided commanders back to lawful options. Such episodes are not published in court reporters. The “celebration” of such instances is complicated in an institution dependent on obedience to orders. Moreover, if the process of legal review is working, military personnel are not put into such a position. Commanders consider options that have been vetted by judge advocates, or in the case of the Secretary of Defense, the Department of Defense (DOD) General Counsel, who advise on legality and participate in the staffing process by modifying or removing unlawful options from consideration. I have seen this occur throughout the chain of command, but lawyers are not supposed to reveal their advice, and commanders and policymakers don’t often publicize how their lawyers guided them to better, preferred, and lawful options. However, sometimes such episodes are more public, or become more public, such as when in 2003 the Judge Advocates General of the Military Departments objected to so-called “enhanced interrogation techniques” on legal, moral, and operational grounds, notwithstanding Justice Department memoranda at the time (and later withdrawn) finding their use lawful.
In a criminal prosecution, whether an order is lawful is a question of law for the military judge to decide. Whether a reasonable person (“a man of ordinary sense and understanding”) would know that an order is unlawful is a mixed question of law and fact for the fact finder to determine, which usually means a panel composed of servicemen and women who would be well situated to know whether a reasonable member of the military would know an order was unlawful.
Prosecution, however, is not the preferred process for determining whether an order is lawful, because it comes after the fact, and potentially too late. It also imposes a degree judicial reflection that is unrealistic in many operational military contexts. The better process is to instill in the military knowledge of and respect for the law; and to insist on timely, contextual, and meaningful legal review before orders are issued or carried out. This is important, in part, because we cannot expect every general or private to determine the legality of military orders, nor could we expect the military to function effectively if that were the case. Part of the unstated constitutional compact between military leaders and those they lead is that there will be a process that will review the legality of orders at an appropriate level of command as well as doctrine, procedures, and regulations, rather than asking or expecting each private or captain to assess the legality of a weapon system, its use, or the chain of command’s order to use force. Servicemembers in turn can rely on doctrine, procedures, and regulations knowing they have been reviewed for legality.
In the U.S. military adherence to law is ingrained in the structure and process of command. Six points warrant emphasis.
First, Defense Department Directive 2311.01 “DOD Law of War Program” requires all service members to receive basic law of war training as well as additional training “commensurate with each individual’s duties and responsibilities.” Similarly, many of the principal law of war treaties require the study of the treaty by the armed forces, and in some cases civilian persons and populations as well. Many treaties also require “states to ensure that members of the armed forces who have duties under those treaties are trained commensurate with those duties,” as recognized in the DOD Law of War Manual.
Second, within the military there are processes for receiving legal advice, including on whether an order is lawful. To start, there are approximately 4,600 uniformed lawyers (judge advocates) in the armed forces. Judge advocates are assigned down to the battalion level in the Marine Corps, the regimental and wing level in the Army and Air Force, and the carrier or task force level in the Navy.
Third, there is always a process for obtaining advice, including in operational settings where time is of the essence and process needs to be practiced and routinized. The key is to effectively invoke the process. Judge advocates also train in providing lawful and realistic Rules of Engagement (or in domestic context Standing Rules for the Use of Force) for contexts where the lawyer may not be on hand, or events move too fast to be able to provide advice effectively in the moment. In short, if commanders and lawyers have not identified the scenarios that might come up challenging the legality of orders and thought through their responses in advance then they are not doing their jobs, or put another way, they are derelict in their duties. Ignorance of the law, we know from American legal culture and television, is no defense. But in the military, knowledge of the law is an affirmative duty.
Fourth, although the law may be clear-cut in many cases, such as in the case of grave breaches of the law of armed conflict (e.g., killing prisoners, torture, etc.), in many cases it is not. Many complex and difficult U.S. legal questions involving the military center on constitutional authorities about which reasonable people may disagree and for which arguments can be made on either side. The law of obedience is not the mechanism for addressing such questions; a timely, contextual, meaningful, and accountable legal process is.
Fifth, the senior lawyers in each of the military services have issued Rules of Professional Conduct providing binding regulatory guidance to judge advocates on what to do when the lawyer knows that an officer or employee of the service is engaged in or intends to engage in a violation of law or a violation of a service legal obligation. The short answer is the lawyer may (i.e., is authorized) to take a number of measures to encourage reconsideration including raising the matter with the “technical chain of command,” which is to say the legal side of the command structure. The regulations remind that, as in the ABA Model Rules of Professional Conduct, the organization, not the commander, is the client. In other words, the Department and ultimately the law, which means the Constitution, comes first, not loyalty to the commander or the mission. Moreover, because the requirement is embedded in regulation, referral of an issue to the technical chain of command is not an act of disloyalty to the commander, it is a military duty.
Sixth, adherence to the law is part of America’s military culture. The military is sometimes criticized for having too many lawyers, or lawyers who are too involved. But evaluation of the legality of orders is not done to second-guess orders. Prudential advice is offered to improve and to test. All of which is done because following the law is part of American military culture. It started with General Washington on the steps of the Temple of Virtue in Newburgh, New York. It continues in General Hyten’s comments and the DOD Law of War Program. As the DOD Law of War Manual states of the military “The law of war is part of who we are.” This is not to say that all military members follow all orders, or that all orders are lawful. If that were the case, the court on which I served for fifteen years, the United States Court of Appeals for the Armed Forces, would not have a docket. Nor would we associate the names Calley, Medina, and England with military justice.
Good Governance Addresses the Following Factors in Advance
Even though the basic rules, principles, and responsibilities in this area are clear, and the Department of Defense and Services have embedded and tested processes for addressing the legality of weapons, regulations, and orders, that does not mean ambiguity and questions will not arise requiring contextual answers about military orders and their legality. As a result, senior military leaders, such as the Chairman and Vice Chairman of the Joint Chiefs of Staff and the Judge Advocates General of the services should: (1) consider hard questions of law, such as those pertaining to the use of the military in civil contexts in advance; (2) clearly communicate orders and their legal basis in an accountable and where possible transparent way; and (3) convey publicly their commitment to core constitutional and legal principles, as General Hyten did at the Halifax Security Conference quoted at the outset of this paper. No doubt, these same officers will say: “We are!” To which I would say, “Carry on.” But please do so in a manner that is transparent to American public and please do so in a manner that effectively addresses the following five issues. Where there is legal, cultural, and command clarity on these points there will be less room to question the legal validity of military orders and actions.
Competent Authority. A lawful order is one directed to the performance of military task or duty. It must also be issued by a competent authority, which is to say, someone within the chain of command or bearing the legal authority to issue the order in the first instance. The Manual for Courts-Martial discussion fleshes the principle out: “The commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, custom of the Service, or applicable order to direct, coordinate, or control the duties, activities, health, welfare, morale, or discipline of the accused.”
Thus, we know that a lawful order must be issued by an official with the authority to to do so – competent authority. This is intuitive, but not always clear in context. In the military there is an administrative chain of command, responsible for recruiting, training, and feeding a service component (the Army, Navy, Air Force, Marines, Coast Guard, and Space Force), and there is an operational chain of command, which is responsible for the actual use of the armed forces by the unified combatant commands. Thus, as a general matter, the administrative chain of command cannot order the operational chain of command to act.
With clarity comes responsibility and accountability, including legal responsibility, which in turn brings preferred outcomes. This is one reason why Secretary Rumsfeld disfavored use of the term National Command Authorities or Authority (NCA) to describe the highest levels of the nuclear chain of command. Rumsfeld wanted names. He wanted it to be clear, for example, when a decision needed to be made by the President and when it could be made by the Secretary of Defense exercising statutory or delegated authority. With names comes clarity, responsibility, and accountability. That is why commanders and lawyers need to consider in advance the myriad of homeland security and civil scenarios that might arise, in advance, determining who, if anyone, has competent authority to order an action and is therefore accountable for that action. The necessity for doing so might be magnified in scenarios where different military and law enforcement entities are present and subject to different laws and chains of command. Competent authority should also be clearly defined and communicated in the case of National Guard units performing Federal and State missions. Who, for example, by law, regulation, or custom has the authority – if at all – to order a military helicopter to engage in crowd control or to deploy non-lethal weapons? Junior officers and noncommissioned officers (NCOs) should not be left to decide such issues in the operational moment with all the attendant constitutional and criminal implications that may ride on their decisions. Military decision-makers should insist that where orders may be controversial or novel competent authority be limited to the most senior commanders, be issued in writing, and with documented legal review.
Form. The Trump presidency has raised new questions about the form an order must take before it is considered an order, let alone a lawful order. Is a tweet an order from the Commander in Chief, or is it merely a political or policy statement? The form and frequency of the question are new, but not the question itself. The exercise of nuclear command is known to include certain authentication and control procedures, which is “form” in a different guise. However, outside that specialized context, a military order generally need not be in a certain form, but it does need to be understood as an order. Here is what the Manual for Courts-Martial discussion says: “As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused.” This makes sense, for while we can and should expect a written directive from General Marshall to General Eisenhower to proceed with D-Day, we should not expect the platoon leader issuing a fragmentary order in combat to do so in writing and in triplicate. Thus, in military justice practice, judges ask: “would a reasonable person have understood he or she was receiving an order to perform a military duty?” Certain principles emerge:
● A written order is more likely to receive meaningful review than an oral communication.
● A written order is also more likely to fix responsibility and accountability as well as offer clarity and consistency across commands.
● But written orders take time and may prove impractical in fluid or exigent circumstances. It may prove impractical in bureaucratic circumstances as well, for example, when the Chairman is briefing the President and receives oral direction, in which cases the presence of witnesses will serve to “document” the order. However, such oral direction should be memorialized after the fact as soon as feasible. Consider Winston Churchill during World War II, who noted in a Prime Ministerial Minute on July 19, 1940: “Let it be very clearly understood that all directions emanating from me are made in writing, or should be immediately afterwards confirmed in writing….”
The question for military decision-makers is where and when to impose and insist upon specific requirements of form, which can serve as proxies to verify that the correct decision-maker has authorized the action following the correct process of legal and policy review. In domestic contexts, where the legal questions are sometimes novel, and constitutional factors complex, form and clarity are essential.
Yes, Sirism. There is an aphorism that goes, “The military has a chain of command; civilians have a chain of discussion.” As noted, a military cannot operate without obedience to orders; it cannot be effective without discipline. In U.S. practice, obedience to orders has a constitutional dimension – civilian control of the military. Say no to the President or Secretary of Defense and the military may appear to be challenging the Constitution itself. This is perilous ground. However, civilian control of the military is not solely expressed through the President and it is not the only constitutional principle at play. Congress is charged in Article I with making “Rules for the Government and Regulation of the land and naval Forces” (which means all of the services), and it is civilian judges who ultimately decide military justice appeals. In short, the oath of service is to all of the Constitution, including the rights found in the First, Fourth, and Fifth Amendments, and not just the Commander in Chief clause.
The law is as clear as General Hyten was clear: military officers must decline clearly illegal orders or orders they know to be illegal, wherever such orders originate. For sure, not every lawyer or member of the military has the integrity and moral courage to say no; no to the commander and no to the Commander in Chief, if necessary. Only the good ones. I have seen it done with targets taken out of the Commander in Chief’s hand because they had not been reviewed for legality. Of course, the best lawyers not only say no, but also guide decision-makers to lawful options, getting to yes with honor with the Nation well taken care of and the Constitution intact. Obedience to orders and the law is one norm by which professional members of the military are judged.
However, when it comes to assessing the legality of orders there is a cultural risk that military officers will lean toward yes. If there is a reasonable and lawful way to execute an order, military members are going to do so. That is part of the military’s can-do culture and part of what it means to be obedient to orders. Congress, civilian leaders, and commanders therefore, would be wise to be clear and express when they wish to preclude or limit authority – making it clearly unlawful.
But what about ill-conceived orders, what one might describe as “lawful but awful,” or orders that may present legal controversy even where lawful? A professional military officer who receives a lawful but awful order from the President may be more likely to salute and respond “Yes, Sir!” A civilian official is more likely to ask why, identify the nuance and risk, and apply a Washington Post test to the order (“would I want this on the front page of the newspaper with my name on it”). Why does this matter? Because we want good policy, not just lawful policy; and because the law is not always clear, and thus is often best addressed with policy nuance rather than binary “yes” and “no” legal responses familiar to the military chain of command. A good presidential process invites consideration of policy nuance and deliberation by civilian as well as military officials.
Clarity. It is easier to follow orders, and to determine whether an order is lawful, if the order is clear and the law is clear. Clarity matters.
● There is a tension between prescribing clear limits on authority and unwittingly constraining military options. This is certainly true on the battlefield. However, where Congress or commanders, including the President wish to define limits they should do so in plain and clear language and in advance.
● General Orders and principles are only helpful to a point. But they do not always tell you what to do in context. What, for example, does the first general order direct or even order? “To Take Charge of this Post and all Government Property in View.” How does that apply in Washington, D.C.? One can see the need as well for clarity when dealing with National Guard personnel operating under Federal command and control in Washington, D.C. In such a context, who is the competent authority and what is the scope and limit of his or her authority?
Command deference. Commanders in the military have enormous authority. It is an authority unlike any other in U.S. government practice, blending military grade, hierarchy, and obedience to orders. Civilians sometimes like to say, “I am the equivalent of a two-star general” to explain their relative status to friends and family. Not so. There is no thing equivalent to the authority and responsibility (and sometimes unfortunately, a sense of deferential entitlement) that comes with military command. One appropriate manifestation of command culture is the notion that commanders decide, lawyers advise as supporting staff officers. For sure, commanders are responsible for everything their units do or fail to do, including following the law. That is command responsibility. But it should always be clear that does not mean the commander gets to decide what the law is, or to decide to violate the law. To channel John Marshall, a soldier of an earlier era as well as a judge, it is emphatically the duty of lawyers to say what the law is; it is for commanders to choose between lawful options in accomplishing the mission with the benefit of legal advice that clearly demarcates between what is law and what is prudential advice.
Conclusion: The Constitutional Compact
There is a tension between a commitment to obedience to lawful orders, on the one hand, and a corresponding duty to refuse to comply with clearly unlawful orders, on the other. This tension is addressed in logic by the oath officers and enlisted personnel take to support and defend the Constitution, even as enlisted personnel also swear “to obey the orders of the President and the orders of the officers appointed over me.” And it is addressed in practice by ensuring there are processes in place to educate military personnel on relevant law or train them in warfighting practices reviewed for consistency with the law of war as well as process to meaningfully address the legality of military operations and orders before they occur or are issued. That is the constitutional compact when it comes to obedience and lawful orders. An oath to defend the Constitution is an oath to defend the law. Part of doing so is to consider the legality of orders; but rather than doing so by empowering individual soldiers to question commands, the military has created processes to ensure this is done in a meaningful way by lawyers and commanders. It is the duty of commanders and lawyers to ensure this is done in a timely, realistic, and contextual way to accomplish the mission and do so consistent with law.
The problem is more complex when dealing with Presidents because: (1) It brings into play the principle of civilian control of the military and thus the questioning of any presidential orders can be viewed correctly or incorrectly as undermining the Constitution; and (2) often Presidents rely on constitutional authority that in many cases is ambiguous. Thus, to the constitutional lawyer’s eye an order may not be clearly lawful or unlawful, which is one reason why military law presents the duty not to follow unlawful orders as a defense but only when a reasonable person would know the order was unlawful. The answer, of course, is not to turn every captain into a Learned Hand to make their own constitutional law judgments on the spot (See, United States v. New and Smith v. Obama), but for: (a) presidents to take care that the laws be faithfully executed; (b) appoint commanders who respect the substance of the law and rely on their legal advisors in decision-making; and (c) ensure you have a process that will meaningfully teach military personnel and commanders the law pertaining to their responsibilities as well as a process to review legal questions of authority and LOAC before orders are issued and actions taken and before doctrine and regulations are issued and implemented.
James E. Baker is Director of the Syracuse University Institute for Security Policy and Law and a professor at the Syracuse College of Law and Maxwell School of Citizenship and Public Affairs. He is a former Judge and Chief Judge of the United States Court of Appeals for the Armed Forces, NSC Legal Adviser, and Marine Corps infantry officer. The author wishes to acknowledge Aly Kozma’s invaluable assistance in preparing this paper; however, any views expressed in this paper are his own as are any errors.
[Editor’s note: Readers may also be interested in Christopher Fonzone’s “What the Law of Military Obedience Can (and Can’t) Do–What Happens if a President’s Orders are Unlawful?,” May 4, 2018]